GOP leader Kevin McCarthy challenges legitimacy of Jan. 6 panel, subpoena to him

Defiant letter signals McCarthy intends to contest the subpoena to compel his testimony and documents, a move that could eventually land the matter in federal court

Updated: May 27, 2022 - 5:59pm

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The lawyer for House Republican Leader Kevin McCarthy launched a legal broadside Friday challenging the legitimacy of the Jan. 6 panel and its subpoena to his client.

Attorney Elliot S. Berke sent an 11-page letter to House Jan.6 Select Committee Chairman Bennie Thompson, D-Miss., saying the subpoena sent to McCarthy and other GOP lawmakers is not enforceable because the panel was not formed in compliance with Congress' rules, in part because it has no ranking member.

“All valid and lawfully issued subpoenas must be respected and honored," Berke wrote. "Unfortunately, the words and actions of the Select Committee and its members have made it clear that it is not exercising a valid or lawful use of Congress’ subpoena power."

You can read the letter here:

In fact, the Select Committee is not even operating in compliance with the rules its own members voted to put in place," he added, using an argument first devised by attorney Tim Parlatore on behalf of former NYPD Commissioner Bernie Kerik, a witness before the committee. In the end, Kerik struck a deal with the panel and cooperated voluntarily.

Berke's letter signals McCarthy intends to contest the subpoena to compel his testimony and documents, a move that could eventually land the matter in the federal courts. Several witnesses outside Congress have been found in contempt of Congress for refusing to comply with the panel, and one, former Trump adviser Steve Bannon, has been charged with criminal contempt.

Berke said part of his argument is that House Speaker Nancy Pelosi's rules require a ranking member to be appointed in order for a committee to lawfully seated, and McCarthy was denied the right to do so as Minority Leader.

:"The Speaker has failed to act in accordance with the Rules of the United States House of Representatives (“Rules of the House” or “House Rules”) she put forth, and as a result, the Select Committee has operated both in composition and manner that deviates from the duly authorized Resolution that created it," he wrote.

"The Select Committee failed this mandate from the outset when Speaker Pelosi violated 232 years of continuous precedent by refusing to allow the minority party to select its representation on the committee."